1. I have had the advantage of perusing the judgment of my brother Brijlal Gupta. I agree with him that the date of signing the complaint was 1-6-1962 and that is the date on which the complaint was made. With great Inspect to him, I do not agree that it is optional for the Court not to record a finding of its being satisfied of the expediency even though it is satisfied about the expediency, but I agree that the non-recording of the satisfaction does not render the making of the complaint illegal. Signing the complaint amounts to making it; there is really one act caliecl differently. Sending the complaint to the Court concerned for trial is a different act and is of ministerial nature, for the reasons stated by me in my judgment in Mohd. Illayas v. State of U. P., 1954 All U 241 : (AIR 1954 All 225), an appeal lies not from the finding about the expediency but from the making of the complaint, i.e. from the signing of the complaint. I further agree with my learned brother that the making of a complaint is an order within the meaning of Section 419, Cr, P. C., which requires an appeal to be accompanied by a copy of the order.
2. I have already given my reasons in detail for the view that limitation for an appeal in a case governed by Section 476, Cr. P. C., commences on the date on which the complaint is signed or made, and I have nothing to add to them or to subtract from them.
3. I agree with the order proposed by my learned brother.
4. This matter comes up before this Bench on an office report that the special appeals have been filed either 167 days cr 364 days beyond limitation depending upon whether the date from which the limitation Is to be computed is 22-12-1961 or 15-5-1961. The two starting points for the period of limitation have been mentioned In the office report, according to the conflicting decisions of learned single Judges of this Court in three cases viz., 1954 All LJ 241 : (AIR 1954 All 225) and Jagan Prasad v. State, 1957 All LJ 17 in which it has been laid down that the starting point of limitation for an appeal under Section 476-B, Cr. P. C., is the date on which the complaint is signed and the other view laid down in Ram Prasad Singh v. State, AIR 1959 All 529, that the starting point of limitation is the date of the recording of the finding that it is expedient in the interest of justice that an enquiry should be made into an offence referred to in Section 195 (1), Clause (b) or (c) as required by Section 476, Cr. P. C.
5. The finding as required by Section 476 was recorded by the Court on 15-5-1961 but the office report is wrong that the date of the signing of the complaint was 22-12-1961 on the basis of which the office computed the delay of 167 days according to the view in the two first mentioned decisions of this Court. I find from the record that an enquiry was addressed by learned counsel for the appellant to the office of this Court. In this enquiry two of the questions on which information was sought were
1. When was the complaint in the above case signed by the Registrar of the Court and
2. When was the aforesaid complaint sent to the Magistrate, Allahabad?
6. The reply to these two enquiries was '1-6-1962 and 5-6-1962 respectively'. It is, therefore clear that the date of the signing of the complaint was 1-6-1962 and not 22-12-1961. Accordingly the period of delay according to the view laid down in the first two decisions would be very much reduced and would be only about a week or even, less and not 167 days.
7. I may mention that this matter came before another Bench and that Bench by order dated 9-8-1962 directed) the Registrar to record a report stating clearly whether he signed the complaint in token of its completion on 22-12-1961 or 1-6-1962 but that report has not been recorded. It seems to me, however, that in view of the fact that on enquiry made from the office of the Court the office replied that the complaint was signed by the Registrar on 1-6-1962 the report of the Registrar is realty not necessary. I shall, therefore, assume that the date of the signing of the complaint by the Registrar is 1-6-1962 and not 22-12-1961 as mentioned in the office report.
8. I now proceed to consider whether the starting point of limitation for an appeal under Section 476-B is the date of the recording of the finding as required by Section 475 or the date of the signing of the complaint. The answer to the question depends upon the consideration of the meaning and the effect of the provisions in Section 476-B, Cr. P. C. and Article 154, Limitation Act.
9. Section 476 requires that before an enquiry can be made into an offence referred to in Section 195 (1), Clause (b) or Clause (c),
1. it should have formed an opinion that it isexpedient in the interest of justice that an enquiryshould be made. The forming of the opinion is notrequired to be done in writing.
It follows that the requirement of the section would be satisfied if the opinion is formed by the Court as a purely mental act upon a consideration of the materials before it. (2) The section next gives an option or a discretion to the Court to record a finding that it is expedient in the interest of justice that an enquiry should be made. The language used is,
'such Court 'may', after such preliminary enquiry, If any, as it thinks necessary, record a finding to 'that' effect.'
The word 'may' clearly indicates that it is not obligatory upon the Court to record a finding. It may or may not do so. It follows that the enquiry contemplated by Section 476 will not be void and will not be vitiated for failure to record the finding. The word 'that' obviously means that the finding is to be to the effect whether or not it is expedient in the interest of justice that an enquiry should be made. It seems to me that for the consideration of the question which is before us, it is very necessary to keep in mind the optional or discretionary nature of the requirement of the section regarding the recording of the finding.
3. The section then requires the Court to 'make a complaint of the offence in writing signed by the Presiding Officer of the Court and in the case of a complaint by the High Court, signed by such officer as the Court may appoint.
4. The last requirement of the section in connection with the question for consideration is the forward-ing of the complaint to a Magistrate having jurisdiction.
10. From the last two requirements of the section as mentioned above it is clear that the making of a complaint and the forwarding of the same to a Magistrate are two distinct acts. If the last step, namely the forwarding of the complaint had not been specifically mentioned in the section, it might have been open to question that the prior step, namely the making of the complaint might include also the act of forwarding it to a Magistrate. Specific mention, however, having been made of both the steps, the one step cannot include the other. The making of the complaint must necessarily be taken to be on the date on which the complaint is signed by the Court or in the case of a complaint by the High Court, the date on which it is signed, by such officer as the court may appoint for that purpose. It also appears to me to be clear that while the forwarding of the complaint to a Magistrate is a ministerial act, the making of the complaint is not and cannot be called a ministerial act. It is a judicial act.
11. Upon an analysis of the various steps required to be taken under Section 476 before initiating an enquiry into an offence under Section 195 (1) Clause (b) or (c), it also appears to be clear to me that strictly speaking none of the four steps mentioned above requires the recording of an 'order' in the sense in which the word 'order' is understood in the context of legal proceedings. The forming of the opinion which is the first step is a mental act and not an order; the recording of a finding that it is expedient in the interest of justice that an enquiry should be made is expressly described as a 'finding' and is not described as an 'order'. The arriving at a 'finding' is a preliminary to, the recording of an 'order'. A 'finding or findings' form the basis fcr the conclusion which is incorporated in an 'order'. The 'finding' itself is not an 'order1 and is distinct from and antecedent to the order itself, This conclusion is reinforced by the recommendatory nature of the verb used in the context in the section. The finding is to be to the effect that it is expedient in the interest of justice that an enquiry 'should' be made. The word used is 'should' which as already stated is recommendatory and not 'shall' which might be directory or mandatory. If the word 'shall' had been used instead of the word 'should', it might have been open to argument that even though the Court may be required to record only a 'finding', the 'finding' was given the meaning and effect of an 'order' inasmuch as the finding directed or required that an enquiry 'shall' be made. This not being so, the 'finding' cannot property speaking be confused with an 'order'. The next step, namely, the making of a complaint in writing signed by the Presiding Officer of the Court, is an act, namely the drawing up and signing of the document of complaint. Even though as stated above this act is a judicial act, no order of the Court is required to be incorporated in that document. It ts neither the 'requirement of the section as seen above nor is it the requirement of the document called 'complaint' as defined in Section 4(h) that in it should be incorporated an order directing or requiring an enquiry into the offence. All that Section 4(h) lays down is:
' 'Complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown has committed an offence but it does not include the report of a police officer.'
The essential nature or character of the document of complaint is that it is merely an 'allegation' and not an 'order or a direction'. So far as the last step namely, the forwarding of the complaint to a Magistrate is concerned, that, as already stated above, is merely a ministerial act and. does not involve the passing of an order of any kind.
12. I next proceed to consider the provision in Section 476-B which provides for appeals against two classes oforders.
1. refusal of the application to make a complaintunder Section 476, and
2. by person against whom such a complaint has been made.
No difficulty as to the starting point of the period of limitation in the case of an appeal against the refusal of an application to make a complaint can arise. Clearly the starting point will be the date on which the application is rejected. It is in the other class of cases, namely, in the case of an appeal by the person against whom a complaint has been made that that controversy can arise; the. controversy being as already pointed out above, whether the starting point of limitation is the date of the recording of the finding or the date of the signing of the complaint.
13. The difficulty in answering the question has deepened by reason of the provision in Section 419 which requires that every appeal shall be accompanied by a copy of the judgment or order appealed against. If the recording ot the finding constitutes the 'order' appealed against, naturally its copy will have to be annexed to the memorandum of appeal. This will, however, involve giving an artificial meaning to the word 'order'. As already pointed out above, the recording of the finding does not involve the passing of an 'order' and the 'finding' itself cannot amount to an 'order'. If the appeal is against the making of the complaint, as it is under Section 476-B, then also there is no 'order' contained in the complaint or anywhere else between the date of the recording of the finding and the signing of the complaint. If, however, the mandatory provision in Section 413 is to be complied with, the only document which can be filed is the complaint and it seems to me that if the be cording of the finding can be artificially treated to be an 'order' for the purposes of Section 419, there is no violence to logic or to language necessarily involved in equally treating, the complaint itself to be an order for the purposes of the same section. If the 'recording' of the finding could strictly and properly be called an 'order', there might have been some force in the argument that a complaint not being an 'order', an appeal could, if at all, lie only against the 'recording of the finding' and not against the making. of the complaint.
14. This leads me to a consideration of the provision in Article 154, Limitation Act. That Article providas for a 30 days' period of limitation for an appeal under the Cr. P. C. An appeal under Section 476-B is undoubtedly such an appeal. There is no other provision in the Act providing for appeals under the Cr. P. C. The third column in the Article providing for the date from which the period of limitation is to run is:
'The date of the sentence or order appealed from.'
It is clear that the appeal under Section 476-B is not from any 'sentence'. We are, therefore, left only with the word 'order'. As already shown above, neither the recording of the finding nor the making of the complaint amounts to an 'order' strictly speaking. It follows that either there Is no period of limitation at all provided for an appeal under Section 476-B, or if there is one, an artificial meaning has to be given to the word 'order' to make that word include either a finding or a complaint. That there is a period of limitation provided for an appeal under Section 476-B is clear from the language of the 1st column of Article 154. It also seems to me that having reagrd to the plain language of Section 476-B which provides for an appeal only when a complaint has been made, the appeal is clearly against the making of the complaint The recording of the finding under Section 476 is an act anterior to the making of the complaint. No appeal is provided under Section 476-B at that stage of the proceedings. The appeal is provided only after that stage has passed and a complaint has actually been made. It is not impossible to conceive of cases where for some reason or the other, even though a finding may have been recorded that it is expedient in the interest of justice that an enquiry should be made into an offence under Section 195(1) Clause (b) or (c), no complaint may actually have been made. The party on whose application the proceeding was initiated) may not like to pursue the matter further. The court, either by inadvertence or on second thought or by reason of undue delay or some such similar circumstance may not follow up the recording of the finding by making a complaint. In these circumstances can it be said that the right of appeal under Section 476-B accrues to a party? Obviously no complaint having been made, the person sought to be proceeded against cannot file an appeal. Equally clearly the person on whose application the proceeding was initiated does not get a right of appeal until there has been^ definite refusal to make a complaint. It follows that the mere fact of the artificiality of interpreting the word 'order' in the third column of Article 154, Limitation Act cannot be a sufficient reason for not including in that word the document Of complaint which by reason of the provisions of Section 419 of the Code must necessarily accompany the memorandum of appeal.
15. Apart from this if the appeal is to be filed against the recording of the finding treating that as an order within the meaning of the 3rd column of Article 154, limitation will begin to run from the date of the recording of the finding and the 30 days' period of limitation provided under the Article may already have run out, and having regard to the normal business of the Court, would almost in every case necessarily or ordinarily have run out before a complaint is made and, therefore, the right to file an appeal would be barred even before the right accrued. Could this result have been contemplated by the legislature? It seems to me that this could never have been so. This result is avoided if the word 'order' in the 3rd column of Article 154 is interpreted as including the complaint and the date being the date on which the complaint is finalised, i.e. signed by the Presiding Officer of the Court, or in the case of a High Court by an officer appointed for that purpose.
16. There is one other aspect of the matter which seems to me to be relevant and worthy of consideration. It has already been pointed out above that under Section 476 by the use of the word 'may' an option or discretion is given to the Court to record a finding. If the appeal under Section 4/6-B is against the finding, it will be open to the Court to deprive a party of the valuable right of appeal by choosing not to record the finding. The word used in Section 476 being 'may' and not 'shall' the omission or failure or the choosing not to record a finding will not render the proceeding void or vitiate it in any manner. Can it be conceived that the legislature could have intended that the valuable right of appeal conferred by it on a litigant may be made to depend on the discretion or the option of the Court. It seems to me that that is impossible.
17. For all these reasons I am in respectful agreement with the view expressed by Desai, J. (as he then was) in 1954 All LJ 241 : (AIR 1954 All 225) (supra) where the matter has been dealt with in great detail and upona consideration of the relevant authorities of all the Courts.The other decision in 1957 All LJ 17 is very brief andis strictly speaking not in point There what was laiddown was that Section 476-B did not provide for an appeal againstan order directing the filing of the complaint, where thecomplaint itself had not been made in pursuance of theorder. As already shown there is nothing in Section 476 toprovide for the making of an order directing the filing ofa complaint In that, case the question did not arise whether the appeal is against the recording of the finding orthe making of the complaint.
18. The third case in AIR 1959 All 529 (Supra) lays down that an appeal under Section 476-B lies against the order of the court for lodging a complaint and the lodging of the complaint is only a ministerial act which has to be performed by the office and no further order is necessary from the court. From what has been stated above, it seems to me with the utmost respect, that in this case the language of the statute has been lost sight of, and the whole issue has been confused. There is no 'order' mentioned either under Section 476-B or under Section 476 for the lodging of a complaint. It has also been shown above that under Section 476 the making of the complaint is quite distinct from the ministerial act of forwarding the complaint. I have, therefore, no hesitation in holding that the case has been wrongly decided. It is remarkable that the earlier decision of Desai, J. in 1954 All LJ 241 : (AIR 1954 All 225) (supra) was not brought to the notice of the learned Judge, The result is that in this case limitation has to be computed from 1-6-1962. As on the computation of limitation even from this date there will still be some delay, the appellant may be given time for filing an application under Section 5 of the Limitation Act for condonation of delay.
19. In the view which I have taken, it may not always be very easy for a party to find out the date on which the complaint is signed by the Presiding Officer of the Court or by an officer of the High Court. As such it seems to me that an application for condonation of delay would generally speaking be more readily allowed than similar applications in other cases and in other circumstances.
20. Before parting with the case I cannot help observing that the position is unsatisfactory but the remedy lies with the legislature by amending the relevant provisionssuitably.